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ELCAllowedOriginating Summons dated 18th February, 2014 (Kerugoya ELC)· [2022] KEELC 1929 (KLR)

Registered Trustee Catholic Diocese of Murang’a v Micere Njau & 3 others [2022] KEELC 1929 (KLR)

Environment and Land Court
21 January 2022
ECE.C. Cherono
5,729 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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A Catholic Diocese won land it had openly occupied since 1965, because 12 years of continuous occupation extinguished the original owner's title, even through succession.

What this practically means

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Executive summary

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The Catholic Diocese of Murang'a Registered Trustee brought an originating summons under Sections 37 and 38 of the Limitation of Actions Act claiming title to land parcel INOI/KERUGOYA/194 (subdivided into INOI/KERUGOYA/3069-3072) by adverse possession, contending that schools under its sponsorship had occupied the parcel openly and continuously since 1965, and that the registered proprietor Njau Nduna had been compensated by Kirinyaga County Council with parcel INOI/KAMONDO/628 in exchange. The defendants, beneficiaries of the deceased's estate, denied the claim, asserting that the school stood on parcel INOI/KERUGOYA/250, that the deceased had charged the land to AFC, that the exchange documents were forged, and that the succession cause and newly issued titles interrupted adverse possession. They also raised locus standi in submissions. The court found the Land Registrar's site report confirming the defendants' non-occupation uncontroverted, held the deceased's title had been extinguished in 1977 after 12 years of adverse occupation, and that succession proceedings and resultant new titles were 'tiger papers' that did not stop time running. The locus standi objection failed because it was raised only in submissions, which cannot replace evidence. Judgment was entered for the plaintiff: declarations that the defendants' titles were extinguished, registration of the plaintiff as absolute proprietor, the order to serve as an instrument of transfer, and costs against the defendants jointly and severally.

Key legal issues

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01

Entitlement to proprietorship of INOI/KERUGOYA/194 by prescription

Holding

The plaintiff acquired the suit land by adverse possession having occupied it openly, continuously and uninterrupted since 1965, far beyond the 12-year limitation period

Reasoning

The Land Registrar's site report dated 14th September 2016 found the whole parcel occupied by St Michael Girls Boarding School, and this was uncontroverted. DW1 admitted the defendants live on INOI/KAMONDO/628 and never occupied the suit land. The AFC charge did not defeat the claim since an adverse possession order takes effect subject to register entries.

p. 8
02

Whether Njau Nduna had valid transmissible title

Holding

The deceased's title was extinguished in 1977 and there was no interest to pass to his estate or beneficiaries

Reasoning

By the time of death, title had already passed to the plaintiff by prescription, so nothing passed through the succession cause. The defendants were already compensated with INOI/KAMONDO/628 in exchange, and their claim would amount to unjust enrichment. The defendants led no evidence that the exchange was a forgery.

p. 8
03

Whether the succession cause and new titles interrupted adverse possession

Holding

They did not; time continued running and the new titles were of no effect against the adverse possession claim

Reasoning

The defendants' argument that time ran afresh from the new titles was rejected because limitation does not stop on change of ownership. The succession cause was filed long after the title was extinguished, and no suit or effective assertion of the right of recovery was demonstrated within the limitation period.

p. 8
04

Locus standi raised only in submissions

Holding

The issue could not be determined because it was not pleaded nor raised at the earliest opportunity

Reasoning

An objection to capacity to sue is serious and should be raised by defence or preliminary objection. Submissions are not evidence and cannot introduce a new issue. The court therefore declined to strike out the suit on the locus standi ground raised only in the defendants' submissions.

p. 8

Legal principles established

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  • An order for adverse possession takes effect subject to any other entry on the register, including a charge
  • A claim for adverse possession runs with the land and time does not stop running on a change of ownership or issuance of new titles
  • Succession proceedings and titles derived therefrom do not interrupt adverse possession where the deceased's title was already extinguished
  • Submissions cannot take the place of evidence; issues raised only in submissions cannot be determined

Court orders

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  1. 1.A declaration that the title(s) of Njau Nduna (deceased) in respect of land parcel INOI/KERUGOYA/194 now subdivided into INOI/KERUGOYA/3069, 3070, 3071 and 3072 have been extinguished by the plaintiffs' adverse possession for more than 12 years
  2. 2.A declaration that the plaintiffs have become entitled by adverse possession as absolute proprietors of INOI/KERUGOYA/194 and the resultant parcels in place of the defendants
  3. 3.An order that the County Land Registrar, Kirinyaga register the plaintiffs as absolute proprietors of INOI/KERUGOYA/194 and the resultant parcels
  4. 4.A direction that the order shall be an instrument of transfer of ownership of the whole suit land from the defendants to the plaintiffs
  5. 5.Costs of the suit to be borne by the defendants jointly and severally

Authorities

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Legislation

  • Limitation of Actions ActSections 7, 37 and 38
  • Land ActSection 7(d)
  • Basic Education Act No. 14 of 2013Sections 55, 56, 59 and Fourth Schedule paragraph 1

Cases cited (7)

  • Loise Nduta Itotia v Aziza Said Hamisi
    Civil Appeal No. 84 of 2019 at Malindi (2002) e KLR
  • Kipketer Togom v Isaac Cipriano Shingore
    [2012] e KLR
  • Julian Adoyo Ongunga v Francis Kiberenge Abano
    Migori Civil Appeal No. 119 of 2015
  • Hawo Shanko v Mohamed Uta Shanko
    [2018] e KLR
  • M'Mbaoni M'Thaara v James Mbaka
    (2017) e KLR
  • Mugo Ndembero v Edward Muganda Ngare
    [2010] e KLR
  • Daniel Arap Moi v Mwangi Stephen Muriithi & Another
    (2014) e KLR
Jurisdiction invoked
Sections 37 and 38 of the Limitation of Actions Act; Section 7(d) of the Land Act (adverse possession claim under the court's original jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Registered Trustee Catholic Diocese of Murang’a v Micere Njau & 3 others [2022] KEELC 1929 (KLR)", Case Analysis (2022). Originating Summons dated 18th February, 2014 (Kerugoya ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1929/eng@2022-01-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.